Landmark Judgment of Supreme Court on Freedom of Speech

In a landmark judgment, Supreme Court has struck down Section 66A of the IT Act. In their order, the court said, Section 66A is violative of Article 19(1)(a), not saved by Article 19(2), hence unconstitutional.

Freedom of the speech is the fundamental right of every person and with this judgment Supreme Court has Court has termed Section 66A of the IT Act as unconstitutional and untenable. The court said that it violated the right to freedom of speech, a fundamental right guaranteed in the constitution of India. In a landmark judgement upholding freedom of expression, the Supreme Court on Tuesday struck down a provision in the cyber law which provides power to arrest a person for posting allegedly “offensive” content on websites.

A bench of justices J Chelameswar and R F Nariman had on February 26 reserved its judgement after Government concluded its arguments contending that section 66A of the Information Technology Act cannot be “quashed” merely because of the possibility of its “abuse”. Additional Solicitor General Tushar Mehta had said that the Government did not want to curtail the freedom of speech and expression at all which is enshrined in the Constitution, but the vast cyber world could not be allowed to remain unregulated.

Terming liberty of thought and expression as “cardinal”, a bench of justices J Chelameswar and R F Nariman said, “The public’s right to know is directly affected by section 66A of the Information Technology Act.” Justice Nariman, who pronounced the verdict in a packed court he also said that the provision “clearly affects” the fundamental right to freedom of speech and expression enshrined under the Constitution. Elaborating the grounds for holding the provision as “unconstitutional”, it said terms like “annoying”, “inconvenient” and “grossly offensive”, used in the provision are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence. The bench also referred to two judgements of separate UK courts which reached different conclusions as to whether the material in question was offensive or grossly offensive.

“When judicially trained minds can reach on different conclusions” while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive, the bench said, adding, “What may be offensive to a person may not be offensive to the other”. The bench also rejected the assurance given by NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused.

The government had also said that it will not misuse the provision. “Governments come and go but section 66A will remain forever,” the bench said, adding the present government cannot give an undertaking about its successor that they will not abuse the same. The bench, however, did not strike down two other provisions- sections 69A and 79 of the IT Act- and said that they can remain enforced with certain restrictions.

Here are some of the prominent reactions on this judgement

According to Mr. Ravi Shankar Prasad “if the security establishment feels there is need to consider certain aspects in the light of the order, these shall be considered in a proper structured way with due safeguards so that the constitutional rights are not frustrated.”There can be no parallel of our stand on this matter with that of the previous UPA regime. We have in writing confirmed that we stand for freedom of speech and expression, while the previous UPA government tried to make this law an instrument to curb dissent, satire and anything else which did not suit it,” he told reporters.

The government counsel, who defended the constitutional validity of Section 66A of IT Act, today maintained that it respects freedom of speech and expression and is not in favor curbing dissent on social media. At the same time, it said it had conveyed a request to the court that government is willing to come out with additional, more stringent guidelines so as to prevent abuse of Section 66A of the Act which allows arrest of a person for posting allegedly “offensive” content on websites.

Now even Congress has admitted that Section 66A of cyber law, introduced by the UPA regime in 2008, was poorly drafted and was vulnerable to misuse. The Congress leader P Chidambaram welcomed the Supreme Court judgement holding Section 66A of the IT Act as unconstitutional. “I welcome the judgement of the Supreme Court holding that Section 66A of the IT Act is unconstitutional. “The section was poorly drafted and was vulnerable. It was capable of being misused and, in fact, it was misused,” he said. According to the former union minister who held the finance portfolio in UPA government “There could be a case of misuse of freedom of speech and in such cases ordinary laws should apply and the offender should be dealt with under them. “If some provisions of the law have to be strengthened, that could be considered. But Section 66A was not the answer.

Aam Aadmi Party (AAP) leader Prashant Bhushan on said that the Supreme Court’s decision to strike down the controversial Section 66A of the IT Act was essential as it was extremely ‘vague’. “It is a very essential judgment. People were being victimized due to a law which was very vague,”

BJP spokesperson Nalin Kohli has also welcomed the decision. Kohli said, Landmark day for freedom of speech & expression, article 19(2) has been reaffirmed, while Shiv Sena has given a guarded reaction to SC scrapping 66A. A girl posted comments on internet after sad demise of Balasaheb in Palghar. Social media does have positive impact, but it’s also being misused, police must have some powers in their hands: Sanjay Raut, Shiv Sena

Former Information and Broadcasting Minister Manish Tiwary has welcomed the judgment. He said that the law was misused too often and hence it needed to go. He said that the law is antithesis of freedom and expression. While Rinu Srinivasan, the girl who was arrested under the section for a Facebook post on Bal Thackeray welcome the decision of Supreme Court. She said, “If this law is repealed it may encourage people to speak up and against all the wrong in the world”. “I am very happy. I feel like we have received justice after two years,” she said.

Lawyers, artists and activists struggling to preserve freedom of expression have welcomed the Supreme Court’s decision to scrap the controversial Section 66A of the Information Technology Act and hoped that with the “landmark judgement” would help prevent the “abuse” of the “draconian law”. “We are extremely happy with the SC ruling. It will send across a positive signal. From now on, no one will be scared of sharing his or her views on Internet,” Supreme Court lawyer Manali Singhal, who was the main petitioner in the case, told Firstpost. “By striking down of the draconian law (Section 66A of the IT Act), the apex court has restored our faith in democracy,” she added.

Reacting to the development, political cartoonist and free speech campaigner Aseem Trivedi, who was jailed for posting a controversial sketch on his Facebook page and website, termed the verdict a “progressive step”, which will give “confidence to people to express their views on any issue on social media without the fear of going behind bars”. “Although the Constitution of India guarantees the freedom of speech and expression, common people do not have a platform to put their views except the social media network. If this space is censored or encroached upon, where will they go? How will they react? I am thankful to the court which understood the gravity of the situation and came up with such a remarkable judgement,” he said.

Rights activist Kavita Krishnan welcomed the verdict as a victory of Shaheen Dhada, Shreya Singhal and of all the civil liberties lawyers and activists of India.

“The use of (Article) 66A to curb dissent was shameful for India’s democracy. The Supreme Court has done well to strike down this law,” she said adding that several others laws are also “inconsistent with constitutional liberties”. “We hope other draconian laws, including Article 377, 294 A, Sedition Act, AFSPA, will also go next,”

“We won…,” says Supreme Court lawyer Karuna Nundy says. “Section 66A that had the truth telling Shaheen Dhada arrested for a Facebook post, that Azam Khan used to criminalise a Class XI student, that had people worry about jail for being ‘annoying’ and ‘inconvenient’ has been struck down by the Supreme Court this morning. Almost three years after the work started, it’s hard to absorb, but thank you, Constitution of India, you still redeem us,” she wrote on Facebook.

Internet & Mobile Association of India (IAMAI) President Subho Ray described the verdict as “landmark judgment” which will “strengthen the safe harbour provisions for intermediaries contained in Section 79 of the IT Act”. “Internet users will be able to use online services without fear of illegal censorship or harassment, and online businesses, ranging from established international companies to small Indian start-ups, will be able to take advantage of a more conducive business environment,” he said.

Prominent Indian poet Mangalesh Dabral says, “It is a great day for those who work for freedom of expression. The controversial provision was being abused. No one will now be allowed to curb any voice of dissent, which is essential for a healthy democracy.” Anil Chamaria, chairperson of Media Studies group, says, “I am glad that the SC has struck down Sec 66A of IT Act, which was liable to misuse. Freedom must not be curbed. The SC has made appropriate decision.”